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LAWS 8886 (2)
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Intl Law Outline2.docx

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Department
Law
Course
LAWS 8886
Professor
David Wirth
Semester
Fall

Description
INTERNATIONALLAW OUTLINE STRUCTUREAND OPERATION OF THE INTERNATIONAL LEGAL SYSTEM A. SOURCES OF INTERNATIONAL LAW a. TREATIES i. Flow of rights and obligations and an intent to be bound ii. Contract 1. Identifiable parties (States) 2. Include terms the parties abide by 3. Require agreement among parties 4. NO requirement for reciprocity and consideration in int’l law 5. Only necessary element is consent iii. Create a flow of rights and obligations iv. There is no int’l court to which an appeal can be made for enforcement of a treaty v. Article 38 of the Statute of the ICJ 1. Recognizes the sources of Int’l law a. (1) International conventions, general or particular, establishing rules expressly recognized by the contesting states b. (2) Int’l custom, as evidence of a general practice accepted as law c. (3) General principles of law recognized by civilized nations d. (4) Judicial decisions by municipal and multilateral courts (not binding) e. (5) The writings/teachings of int’l law scholars (as a way to recognize existing custom usually) f. (5) vi. Examples of Treaties 1. Treaty b/t the Jews and the Romans (160 BC) a. Mutual defense pact re: Syrian oppression of Jews; termination clause built into it in case of breach 2. Peace of Westphalia (1648) a. Considered the beginning of time for int’l law i. First treaty between states (not kings) and if one signatory failed to fulfill its obligations the other states could gang up on it to enforce the treaty obligations b. Ended the 30 Years Way c. Included amnesty provision to prevent further bloodshed d. “Liberty of conscience” (i.e., freedom of religion) – obligation owed by state to its citizens; and this liberty was not a reason to go to war 3. Treaty of Paris (1783) a. Ended theAmerican Revolution b. George III recognized independence of US, relinquished his claim to territory/gov’t/property and agreed to cease hostilities and return to friendly/open economic & diplomatic relations i. The Treaty outlines exactly what GB ceded c. Gave US power to legally form treaties with 3 powers d. Assured int’l community of stability ofAmericas 4. Cession ofAlaska (1867) a. Purchase and sale agreement by Russia to US for Alaska b. Russian citizens could choose whether they would go back to Russia or become US citizens, but they retained full rights to live and work unmolested c. Demarcation important d. Native peoples – they were not Russian subjects, but rather should be dealt w/ as native peoples subject to the laws of the US 5. Kellogg-Briand Pact (1928) a. Treaty of Peace ending WWI; multilateral treaty between 8 states b. Entry into force provision; only became effective when ratified byALL party states c. U.S. served as depository (states submitted ratification to the US) 6. Cordell Hull (1940) a. Hull’s discussion of the precursor to the lend-lease act as a way to circumvent treaty obligations and domestic laws that would have prevented the US from giving/selling Britain necessary ships b. FDR did it w/o ratification from Congress vii. The Law of Treaties 1. Overview a. All treaties go through the following phases: negotiation, signature, ratification (usually), coming into force, interpretation, and (sometimes) termination b. States just have to manifest a mutual intent to be bound i. States have to be careful when their leaders speak (Eastern Greenland—statements can be binding is they demonstrate an intent to be bound) c. Reservations are allowed as long as they are communicated within the framework of the treaty (like the US did w/ its 6 month window for withdrawal from ICJ jurisdiction) d. Third parties are never bound by a bilateral treaty – only signatories are bound i. *Third parties that have signed but not ratified are bound not to fundamentally undermine the purposes of the treaty (Vienna Convention Article 18) e. In the event of BREACH, the non-breaching party has the right to consider the treaty null and void (Gabcikovo-Ngaymaros) f. Pacta sunt servanda (“agreements must be resepcted”) states a principle that there is a strong basis in favor of assuming a treaty is still in force unless the parties agree to terminate it, and thus the parties are assumed to be bound by their terms unless they agree not to be g. Non-breaching party can utilize dispute resolution measures laid out in the treaty and/or by mutual consent of the treaty signatories (Gabcikovo-Nagymaros) h. If one state breaches a multilateral treaty, then the non- breaching parties are not bound to uphold the treaty w/ regard to that party, but toward one another i. Need signatureAND ratification (Ratification ensures that the treaty will continue to be viewed as valid even after the signing party (or government) is out of power) (Kellogg-Briand) 2. Multilateral Treaties a. Series of bilateral treaties – two signatories are bound as regards each other, but not to third parties unless the treaty specifically says so b. An amendment to a multilateral agreement is a NEW agreement and must typically go through all the steps of signature and ratification c. Reservations i. If it has a prohibition, they are not allowed (GenocideAO) ii. They are allowed to the extent that they are consistent with the goals and purposes of the treaty, and prohibited to the extent they are inconsistent (GenocideAO says objection is enough) (Vienna Convention art 19 says you need objection and a statement of an intent not to be bound) iii. If a state has an objection to a reservation and makes an official statement to that effect (and states that its intention is to treat the treaty as unenforceable between it and the reserving state), then the objecting state is entitled to treat the agreement as unenforceable between itself and the reserving state (however, failure to object is implied consent). (Vienna Convention on Treaties,Art. 20) 3. Vienna Convention on the Laws of Treaties a. Treaty on treaties (customary int’l law) b. Article 18 i. If state has expressed consent to be bound by treaty, obliged to refrain from acts that defeat object and purpose of treaty pending entry into force (providing no significant delay of entry into force) ii. De lege ferenda – law in process of coming into being 4. GenocideAdvisory Opinion (1951) a. Rule: No state can be bound w/o its consent i. BUT: Vienna Convention article 20: a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. b. Reservation is invalid if it frustrates or impairs the purpose of the convention – only valid if it is compatible with the objects and purposes of the treaty 5. Destroyers for Bases Deal a. Notes—most formal means of communication b/t gov’ts b. Notes (letters) showed an intent to be bound c. Simple exchange of letters can create treaty if offer, acceptance and intent to be bound are present (need not be formal) 6. Eastern Airlines v. Floyd (scotus, 1991) a. Issue: does the treaty allow for recovery of mental damages; Need convincing evidence that the signatories intended this recovery b. Treaty interpretation c. Vienna Convention art. 31 – a treaty shall be interpreted in accordance w/ the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose i. Negotiating history can be means on interpretation only if the treaty leaves the meaning ambiguous or obscure or leads to a result that is unreasonable d. Rule: interpret the plain meaning of the text 7. Gabcikovo-Nagymaros (1997) a. Hungary v. Slovak Republic b. Treaty is not automatically terminated by breach c. Ways to void treaty: i. Vienna Convention article 62 – fundamental change of circumstances 1. Not much rises to this level; no courts ii. VC art 61 – impossibility iii. VC art 33 – necessity d. Breach may give rise to countermeasures, but they must be proportional to the breach 8. Eastern Greenland Case (Denmark/Norway, 1993) a. Declaration of foreign minister i. Norway: not an official statement, not authorized, off-hand, no traditional marks of an agreement (not written); oral and unilateral ii. Denmark: he had apparent authority and we relied on it b. Intent to be bound is what distinguishes exchanges in treaties b. CUSTOM i. Overview 1. Custom requires: a. (1) a norm b. (2) a history of pattern and practice by states that view that norm as binding (opinion juris) c. (3) lack of express rejection of that norm by the acting state 2. Custom is binding – requires states to act as though they are bound 3. Developing custom is NOT binding a. State can derogate from custom if, at the time the custom is coming into being, it is clear in its intentions not to be bound by that custom b. But this is irrelevant once something becomes custom 4. Pattern and Practice a. Can be weighted heavier for some states (e.g., Switzerland’s weight in terms of creating the law of the sea is limited since its landlocked) 5. No such thing as custom through TREATY a. Atreaty is either: i. Riding on blank slate absent custom ii. Codification of custom iii. Or contractual derogation from custom b. Treaties can codify existing custom, or give ruse to new custom over time (if non-signatories come to act based on a belief that the norm in the treaty is binding), but they cannot create custom c. Treaty is evidence for existence or absence of custom 6. Custom can exist within a region or even between two states, so long as there is sufficient pattern, practice, and intent to be bound ii. Paquete Habana (scotus, 1900) 1. Customary int’l law of the high seas a. Every vessel has a nationality b. Vessels on high seas immune from exercise of jurisdiction of another state beyond flag state c. Exception: belligerent states routine during war to seize foreign flag vessels d. Exception to exception: vessels engaged in subsidence fishing activities near coast (is this custom?—issue) 2. Take-Aways: a. Custom is characterized by a pattern and practice of states motivated by a sense of legal obligation b. New state are bound by all prior existing custom c. Pattern and practice need not be uniform d. Persistent objector states during de lege ferenda will not be bound by custom e. Absence of reciprocity is not a defense to existence of customary rule i. (That StateAis not abding by the rule is not a defense for state B to violate it) iii. TheAsylum Case (Colombia v. Peru, 1950) 1. Colombia is harboring ex-leader of Peru in its embassy; refuse to extradite him b/c Colombia signed a convention that allowed political asylum for political leaders; but Peru didn’t sign it; they were a PERSISTENT OBJECTOR 2. Take-aways: a. (1) There can be a regional or particular rule of customary int’l law b. (2) Persistent objector i. Merely refraining from signing treaty is not evidence of objection on its own ii. Requires taking something that looks like inaction and making it look like action iv. The Lotus Case (France v. Turkey, 1927) 1. Took place on the high seas, where no state has jurisdiction except the flag state a. Jurisdiction to prescribe goes to the limits of their territory and not beyond 2. Five bases of jurisdiction to prescribe in int’l law: a. Territorial (jurisdiction extends to state border) b. Effects (actions exercise jurisdiction overseas/outside territory, ex: Canadian shootsAmerican across the border) c. Nationality of actor (active personality) (US citizen goes overseas and engages in espionage against the US, person can be tried by the US for that behavior) d. Nationality of victim (passive personality) (LOTUS) i. Contested/not well accepted ii. One nation is essentially stepping on sovereignty of other nations iii. Principle has no limits – can be subject to every state in the world; effectively leads to legislating for entire world iv. Terrorism and genocide give rise to passive personality issues e. Universality – “if you can get him, you can try him” – confined to certain crimes (ex: piracy) 3. Take-away: Cannot presume restrictions on independence of states; states are independent and have free will; and cannot exercise jurisdiction in another state without a rule that lets you v. Texaco/Libya Arbitration (1978) 1. Conflict b/t private corporation and a State 2. Int’l law applies using contract analysis a. Expropriation legal only if: (SUBSTANCE) i. For a public purpose ii. Nondiscriminatory iii. Accompanied by [blank] compensation (what compensation is still be argued over) 1. U.S. argued for prompt, adequate, effective compensation 2. Libya argued for appropriate compensation iv. Expropriation need not be total, may also be a creeping expropriation 3. How private company and foreign gov’t can settle issue where no treaty exists (PROCESS) a. Can petition own gov’t for “heavy-handed intervention” (export duties, economic sanctions) b. Petition own gov’t to send diplomat to try to obtain compensation i. Own gov’t may choose to espouse claim or not ii. Having espoused claim, gov’t owns it iii. Gov’t can aim for 100% repayment, settle for less, or abandon claim altogether; there are NO standards for espousal, it is totally discretionary 4. Court looked to UN GeneralAssembly Resolutions a. Unusual b/c resolutions are non-binding b. May evolve into hard, binding custom c. To determine if pattern and practice of states as motivated by sense of legal obligation exists, look to: i. Countries that have adopted resolutions ii. Must look at not only countries, but also characteristics of countries 5. Take-away: UN resolutions, while not binding, can be strong expressions of int’l legal norms, particularly when they are overwhelmingly supported vi. TheAM&S Case (ECJ, 1982) 1. GENERAL PRINCIPLES OF LAW: in the absence of treaty & custom 2. Different approaches: a. (1) Least common denominator – protective states may protest such an approach b. Strictest i. Would adopt common law approach ii. Raises importance of one set of public policies (mirrors least common denominator) c. Middle ground – has something for everyone d. Consider context, use public policy to inform i. Consideration by court as to what might be the best solution ii. Not “mindless plopping down” anywhere on jurisprudence spectrum e. Courts usually take public policy into consideration 3. Facts:AM&S is claiming attorney client privilege; there is not custom b/c states don’t typically needACP; but there is a general principle of law within the European community that is recognized by all member legal systems that recognize the right to ACP 4. Court: there are similarities and differences among how states deal withACP, use the lowest common denominator (state’s rules with the least protection) 5. Take-away: When the subject of a case falls generally within the scope of a treaty but the treaty is silent on a particular issue, and there is not customary international law relevant to the decision, then the court (in this case) has to resort to general principles of law. These general principles come from, usually, the municipal legal traditions of the two contestants, or else from the world/region in which the dispute is being heard. In this case, the ECJ used the LCD approach – only the rules that were found in all Member states were to be viewed as included in the EC’s law, even though there were stronger principles in some states. vii. North Sea Continental Shelf (ICJ, 1993) 1. Case: equidistant method is not binding b/c the Geneva Convention is not binding and has not become a rule of customary int’l law yet 2. Was there a parallel custom? a. Custom that tracks a treaty – at some point a treaty is so widely subscribed to that is creates a parallel custom b. Requires pattern and practice as motivated by a sense of legal obligation c. Behavior by non-treaty parties most relevant in determining custom (parallel or not) 3. Take-away: No custom  look to EQUITY (states have to figure it out themselves) viii. YaltaAgreement 1. When is something binding? a. Sole test to an agreement’s binding character is an intent to be bound i. If language of a memo indicates intent to be bound, it is binding ii. Enforcement mechanisms are entirely irrelevant to intent to be bound 2. Intent to be bound is all that matters a. Depends on the context b. Yalta is an outlier because its one of the only instruments in which there is a dispute over intent to be bound ix. Universal Declaration of Human Rights – How Rhetoric Became Rights 1. There is no intent to be bound here – just a declaration 2. This is a catalyst for the development of custom – can become custom through a pattern and practice of states motivated by a sense of legal obligation nd x. Filatiga (2 circuit, 1980) 1. Take-away: shows a customary or fundamental int’l legal norm adjudicated by a municipal court and enforced by the ordinary mechanisms of a domestic legal system 2. Alien Tort Statute § 1350 – signaled to the world US intended to abide by int’l law and will use courts to do so; does issue fall under “LAW OF NATIONS” a. Allows alien to mobilize court system rather than go through process of diplomacy/diplomatic relations 3. Torture is not allowed in int’l law – opinio juris – jus cogens norm – norm from which no derivation is permitted a. Recognized by numerous UN GAresolutions, distinguished scholars, and multilateral treaties b. UNDHR was not meant to be binding but it became binding through custom through a pattern and practice motivated by a sense of legal obligation B. SUBJECTS AND OBJECTS OF INT’LLAW a. STATES i. ”Every nation which governs itself, under whatever form, and which does not depend on any other nation, is a sovereign state” – E. De Vattel, The Law of Nations ii. What makes a state? Some things to consider: 1. Traditionally arise out of terra nullius, but can arise out of the partition or combination or pre-existing states 2. Self-defined: no territory has ever been a state w/o declaring its intention to be one 3. Montevideo Convention on the Rights and Duties of States: a. State has to have i. Clearly defined territory ii. Apermanent population iii. Government iv. Capacity to enter into relations w/ other states b. Rejects view that recognition by already-existing states is necessary in order to “constitute” a new state (Constitutive Theory) in favor of Declaratory Theory – a state can be a state by it’s own right 4. Other indicators: a. Government, currency, citizens (evidence of citizenship), army, police force, etc 5. Historically, external recognition was a key assertion of an entity’s statehood, but this have become so politicized that it has fallen into disrepute 6. “Statehood” is blurry: a. NativeAmerican tribes in US retain nominal independence and recognize themselves as states, but aren’t recognized by other states b. The Holy See – not a state, per se, but has the trappings of statehood c. States within federal countries i. E.g., Quebec, breakaway of Russian “states,” etc. iii. Recognition of Governments and States 1. Standards for recognition: a. Defined territory b. Defined citizenry c. Gov’t in effective control of the territory d. Gov’t has capacity to conduct foreign relations e. Membership in int’l organizations f. Recognition by other states g. Specific recognition of state claiming statehood by surrounding states 2. Overview of Recognition of Governments and States a. Tinoco: Easy, there is clearly a gov’t in control of the territory of an actual state, solidified for > 2 years b. Goldberg: There is not a state, and it therefore couldn’t engage in sovereign acts c. Kadic: not a state, but it can engage in violations of int’l law 3. Tinoco Arbitration (GB & Costa Rica, 1923) a. Facts: CR had a coup and the Tinoco gov’t made a K w/ GB companies; successor gov’t invalidated all gov’t Ks made by former regime; Tinoco gov’t in control for 2 years 9 months b. Principle of Continuity of States: Changes in gov’t do not affect state’s status in int’l law c. De Facto Government: government is identified by it’s monopoly on power i. Tinoco regime was the DE FACTO gov’t ii. FACTORS: 1. No other gov’t had power, courts sat, congress legislated, gov’t was duly administered, power was established and peaceably exercised, people accepted the Tinoco gov’t d. Recognition: State-to-state recognition or lack thereof is irrelevant to whether a gov’t is actually a gov’t and has effective control over a territory th 4. Autocephalous Greek-Orthodox Church of Cyprus (7 Circuit, 1990) a. Facts: Church on Turkish side of Cyprus; Greek Cypriot gov’t lays claim to sovereignty of the whole island, but Turkish gov’t claims sovereignty on their side, but no one recognizes them i. Turkish gov’t lets mosaics be sold b. Turkish gov’t is not the legitimate gov’t of Turkey c. Unlike Tinoco, there is a valid gov’t (Greek) that claims right to the territory d. What is in northern Cyrpus is NOT a state—its not a state b/c it doesn’t have the capacity to enter into foreign relations e. Compare w/ Tinoco: Looks more like a valid gov’t than Tinoco gov’t—been in power longer, etc.; but the difference is that the northern regime is not a state, but we knew that Costa Rica was a valid state the entire time in Tinoco; Here, there is no state so we don’t have to ask if there is a valid gov’t 5. Kadic v. Karadzic (2 Circuit, 1995) a. Facts: Ps are Croat and Muslim citizens of Bosnia- Herzegovina, formerly a republic of Yugoslavia; suing Karadzic (president of the self-proclaimed republic of Srpska) underAlien TortAct for genocide, war crimes, and crimes against humanity; acts that took place during the Bosnian Civil War b. Private actors are not subject to int’l law – so was Karadzic acting in official capacity? His argument is that it depends on whether Srpska was a state c. Holding: Int’l law can apply when a person is operating under color of state authority i. CommonArticle III of Geneva Convention can apply to domestic forces in armed conflict not of an int’l character d. Karadzic is ring-leader of insurgency that, if successful, would result in a break-away state 6. Republic of Croatia a. Facts: Break-up of the former Yugoslavia; Yugoslav gov’t had stashed assets in anAustrian bank prior to its downfall; states that broke off wanted to money; fighting over how to allocate b. When a country breaks up, two possible routes i. Where pieces break off one after another, break- off states become new states, leaving one final holdover state ii. Or can have all break-away states becoming successor states, and assets of original are divided equally iii. *Int’l community, by and large views all break- away states as successor states c. Concept of Dismembratio – all of the states are successor states i. Holding: therefore, all of the successor states have to distribute the proceeds “equitably” 7. Island of Palmas (US v. Netherlands, 1928) a. Facts: islands; Spain claims to have discovered the island; Dutch came and superseded the Spanish claim by occupying the island in 1677, and the Spanish never contest; Spain then ceded their claim to the US after Spanish-American war (1898); US asserts claim against Dutch b. Discovery + effective occupation = sovereign control over territory that was formerly terra nullius i. Sovereignty – continuous and peaceful display of territorial sovereignty is as good as title iv. Self-Determination and the Creation of States 1. Secession of Quebec a. Issue: Can Quebec secede unilaterally from Canada? b. Right of self determination: the right is limited to prevent threats to an existing state’s territorial integrity or the stability of relations b/t sovereign states i. First generation rights – civil and political rights ensuring people are free from gov’t interference ii. Second generation rights – social and cultural rights (affirmative in nature – gov’t intervention necessary to provide); Ex: public education c. Right is exercised in 3 situations: i. (1) Those under colonial rule ii. (2) Foreign occupation iii. (3) When a people is blocked from the meaningful exercise of its right to self- determination internally, it is entitled, as a last resort, to exercise it by secession d. Quebec loses under int’l law i. Quebec can express itself w/I confines of Canadian gov’t ii. No need for a separate state, therefore no right to one iii. External self-determination is limited to the oppressed and/or colonized b. INTERNATIONALORGANIZATIONS i. Reparations for Injuries Case 1. Facts: UN is attempting to exercise diplomatic protection for one of its agents 2. Issue: Can an int’l organization make a claim against a non- member state? 3. (1) The UN is an international personality a. Derived from the int’l personality of its members 4. (2) The UN has implied power to execute its purposes a. Members have given the UN this power b. UN Charter (multilateral treaty) establishes power and mission c. Powers are implied when necessary to achieve objects and purposes of charter 5. HOLDING: Int’l organizations may have capacity (Locus standi) to present a claim a. Injury caused to Bernadotte was an injury directly to UN itself (he was embodiment of UN mission on the ground) ii. UN Claims against member states: 1. Authority derived from UN Charter 2. Member state must accept/consider claim b/c it has voluntarily joined charter iii. UN Claims against non-member states: (Reps for Injuries Case – Israel, non-member of UN, but customary obligation to recognize UN b/c its authority is so widely accepted) 1. Custom a. Vast number of member states give rise to custom or int’l personality b. UN may play within system as if it were a state to the extent of its actual enumerated powers plus any implied powers necessary to achieve its goal 2. Non-member state must be prepared to accept claim by UN a. UN has int’l legal personality b. Not operating in a contractual realm, but rather customary realm c. Subjects of int’l law have prerogative to make claims against other subjects of int’l law (based on custom); as such, respondent state has obligation to accept claims iv. Take-Away: 1. Int’l organizations have int’l legal personality 2. Int’l organizations have implied powers up to, but not beyond, what is NECESSARY for those implied powers to fulfill their obligations and purposes v. *Only states may be parties to contentious cases c. INDIVIDUALSAND CORPORATIONS i. Overview 1. Individuals – positivist, individuals are objects of int’l law; they don’t have rights under int’l law 2. (1) Nottebohm – establishes that individuals may only be protected by their nat’l states, nat’l links may be elusive 3. (2) When the notion of a nat’l links is extended to corporations, even more confusion can result (Barcelona Traction) 4. Nationality – individuals can only have one effective nationality 5. Principle of Dominant and Effective Nationality— nationality is not the
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